Disabled ADA: How a Narrowing ADA Threatens To Exclude the Cognitively Disabled, The

Brigham Young University Law Review, 2006 by Catchpole, Nathan, Miller, Aaron

The ADA protects qualified disabled persons by calling upon the enforcement powers of the Equal Employment Opportunity Commission (EEOC)34 and by creating a private right of action for the disabled person to bring against a discriminating employer.35 The EEOC may file charges against ADA violators on its own or on behalf of aggrieved persons.36 If the subsequent investigation uncovers reasonable cause for the charge, the EEOC will first attempt to eliminate the discrimination through "informal methods of conference, conciliation, and persuasion."37 If the EEOC's informal means fail, it may bring a civil action against the offending employer in a United States district court.38 If the EEOC chooses not to commence the action itself, it may give leave to the aggrieved party to pursue the action.39 If the employer is found in violation of the ADA, the court "may enjoin the [employer] from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees ... or any other equitable relief."40

B. The Administrative Regulation of the ADA

Because the ADA's broad drafting would make it difficult to apply consistently by itself, Congress has authorized the EEOC to make specific regulations to clarify and carry out the employment title of the ADA.41 The EEOC has promulgated several regulations describing prohibited conduct,42 listing employers' defenses,43 and explaining the ADA's statutory definition of "disability,"44 which was borrowed nearly verbatim from the ADA's philosophical forerunner, the Rehabilitation Act of 1973.45

Interestingly, the Supreme Court, while not outright dismissing the EEOC's "disability" interpretation, has questioned the EEOC's authority to interpret the term. In Sutton v. United Airlines, Inc., the Court noted that the EEOC, like other agencies authorized to interpret the ADA, only had explicit authority to interpret terms under one of the Titles of the ADA and that no agency was given specific authority to interpret "disability," because, instead of being within one of the ADA's Titles, it was under the ADA's generally applicable provisions.46 Later, in Toyota Motor Manufacturing v. Williams, the Court declared that the EEOC's "disability" interpretation was not controlling and supplied its own interpretation of "substantially limits."47 Nevertheless, because the Court has not neatly and definitively replaced the EEOC's interpretation, lower courts continue to apply the EEOC's guidance-as shaped by the Supreme Court's pronouncements-in determining disability.48 Thus, the EEOC's definition remains relevant, and it is the courts' treatment of that definition with which this Comment is most concerned.

The first of the ADA's "disability" definitions can itself be divided into three parts: a (1) physical or mental impairment which (2) substantially limits (3) one or more major life activities. The EEOC defines "physical or mental impairment" as "(1) [a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more . . . body systems;"49 or "(2) [a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities."50 Further, it defines "major life activities" as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."51